Committee against Torture

Communication No. 566/2013

Decision adopted by the Committee at its fifty-fifth session (27 July-14 August 2015)

Submitted by:Mr. M.A. and Ms. M.N. (represented by counsel, Johan Lagerfeld)

Alleged victim:The complainants

State party:Sweden

Date of complaint:12 November 2013 (initial submission)

Date of present decision:30 July 2015

Subject matter:Deportation to the Russian Federation

Procedural issues :None

Substantive issue:Risk of torture upon return to the country of origin

Article of the Convention :3

Annex

Decision of the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (fifty-fifth session)

concerning

Communication No. 566/2013

Submitted by:Mr. M.A. and Ms. M.N. (represented by counsel, Johan Lagerfeld)

Alleged victim:The complainants

State party:Sweden

Date of complaint:12 November 2013 (initial submission)

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 30 July 2015,

Having concluded its consideration of complaint No. 566/2013, submitted to it by Mr. M.A. and Ms. M.N., under article 22 of the Convention,

Having taken into account all information made available to it by the complainants, their counsel and the State party,

Adopts the following:

Decision under article 22 (7) of the Convention against Torture

1.1The complainants are Mr. M.A. and Ms. M.N., both Russian citizens of Chechen origin born in 1975 and 1976, respectively. They submit their complaint on behalf of themselves and their four children, born between 2006 and 2013. Their request for asylum in Sweden was rejected and, at the time of submission of the complaint, they were awaiting a forcible removal to the Russian Federation. They claim that their deportation would violate their rights under article 3 of the Convention against Torture. The complainants are represented by counsel, Johan Lagerfeld.

1.2On 14 November 2013, acting under rule 114, paragraph 1, of its rules of procedure, the Committee requested that the State party refrain from expelling the complainants to the Russian Federation while their complaint is under consideration by the Committee.

The facts as presented by the complainants

2.1The complainants submit that, in 1997, Ms. M.N. and her former husband lived in Chechnya, Russian Federation. She submits that her then husband was employed as a bodyguard for the former President of the self-declared Chechen Republic of Ichkeria Aslan Maskhadov. The Russian military came twice in one week to her house looking for the documents that they said would prove that she had a secret archive at home.

2.2The complainants submit that, on an unknown date in 1999, Mr. M.A. was arrested by the Russian security forces and accused of collaborating with the rebel movement. He was beaten over four or five days before he was released. During his detention, his house was searched by the Russian military authorities. In 2003, he was arrested again and beaten during the interrogation. After his release, his aunt informed him that his parents had been killed during his detention by members of the Russian army. Afterwards, he joined the rebel movement.

2.3The complainants further submit that Ms. M.N.’s former husband was killed in 2004. After his death, she supported herself by selling medicines. It was in this context that she was accused of supplying medicines to rebels. On two occasions, in 2007 and in September 2008, she was brutalized by the Russian military authorities. She was pregnant and, as a result of torture, she suffered miscarriages both times. In May 2005, during a “firefight”, Mr. M.A. was wounded and two of his friends were killed. Thereafter, he lived for a period in Dagestan and with relatives in Chechnya, before escaping to Sweden. On 20 January 2009, the complainants arrived in Sweden and requested asylum.

2.4 On 21 November 2009, the Migration Board denied the complainants’ request for asylum and ordered their expulsion to the Russian Federation. The Board accepted that they were of Chechen origin but considered that the situation in Chechnya had been improving continuously and thus not all Chechen asylum seekers were to be granted international protection. Further, the Board stated that there were significant discrepancies in the complainants’ accounts that made their request ill-founded. The complainants appealed against this decision before the Migration Court.

2.5According to the complainants, Ms. M.N. was in contact with her brother who helped her obtain an affidavit concerning her situation in Chechnya. Nevertheless, he was arrested and killed by the Russian police shortly after he sent her the document. Only the clothes he was wearing and his belongings were returned to the family, not the body. She also contacted her cousin for the same purpose; he was killed at home by unknown assailants. Thereafter, Ms. M.N.’s sister asked her not to contact her or any other relatives. She also informed Ms. M.N. that their parents had been denied their pension and that the authorities had asked them to provide information on the whereabouts of the complainants. At the same time, Mr. M.A. was informed by his aunt that the procurator’s office had issued a warrant for his arrest. His aunt died in January 2011, and thus he no longer has any living relatives in Chechnya.

2.6 On 11 April 2011, the Migration Court rejected the complainants’ appeal. The Court, in line with the Migration Board’s decision, stated that the evidence produced by them was not sufficient to substantiate their claim regarding the personal risk to which they would be exposed if returned to their country of origin. Therefore, it concluded that their fear of persecution was not well-founded and that there were no grounds for granting them residence either as refugees or as persons in need of international protection.The complainants filed an application for appeal to the Migration Court of Appeal. On 8 May 2012, the Migration Court of Appeal denied the appeal and the Migration Court’s decision became final.

2.7According to the complainants, at the time of submission of the complaint, there is no information as to when their expulsion may take place. However, since Mr. M.A. had been taken into custody shortly before submitting the present complaint to the Committee, they fear that the removal may be imminent.

The complaint

3.1The complainants submit that, if they are to be expelled to the Russian Federation, the State party would violate its obligations under article 3 of the Convention, since there are substantial grounds for believing that there is a danger of them being subjected to torture and cruel, inhuman or degrading treatment.

3.2The complainants also contend that they have clearly demonstrated that they were victims of a pattern of harassment and persecution that has already led to the murder of several family members at the hands of Russian law enforcement officers. Since there still are warrants out for their arrest,they believe that there exists a clear and present danger to their lives and well-being. Their fear of persecution and ill-treatment, if returned to the Russian Federation, is well-founded. The contradicting statements made during the interviews with the Swedish authorities can be explained partly by the fact that they have been severely traumatized by their experience, which makes it difficult to remember in detail certain events, and by the fact that they were denied an interpreter in their mother tongue and were obliged to conduct the interviews in Russian.

State party’s observations on admissibility and merits

4.1By note verbale of 13May 2014, the State party submitted its observations on the admissibility and the merits. It recalls the facts of the case and also provides excerpts from relevant domestic legislation. The State party submits that the complainants’ case was assessed under the 2005 Aliens Act, which entered into force on 31 March 2006. The State party’s authorities, upon examination of the facts of the case, concluded that the complainants have not shown that they are in need of protection.

4.2The State party submits that, on 21 November 2009, the Migration Board rejectedthe complainants’ asylum applications and decided to expel them to the Russian Federation. That decision was appealed before the Migration Court, which, on 11 March 2011, rejected the appeal. On 30 May 2011, the Migration Court of Appeal refused to grant a leave to appeal and the decision to expel the complainants became final. On 14 February 2012, the complainants claimed before the Migration Board that there were impediments to the enforcement of the decision to expel them, and requested the re-examination of their case. That request was rejected on 22 February 2012. The decision to reject the request was then appealed before the Migration Court, which rejected the appeal on 23 March 2012. On 8 May 2012, the Migration Court of Appeal refused to grant leave to appeal.

4.3Regarding admissibility, the State party submits that the claim is based on the alleged arrest and assault in 1999 of Mr. M.A., by the Chechen authorities, and on the allegations of Ms. M.N., who also claimed to have been assaulted, but that these claims are “manifestly unfounded”, and therefore, inadmissible, under article 22 (2) of the Covenant and rule 113 (b) of the Committee’s rules of procedure.

4.4Regarding the merits of the communication, the State party submits that the Committee must decide whether the complainantsare personally at risk of being subjected to torture in the country of return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not, as such, constitute sufficient grounds for determining that a particular person would be in danger of being subjected to torture upon return to his or her country. The State party, referring to the Committee jurisprudence,submits that additional grounds must exist to show personal risk.

4.5In considering the present case, the State party therefore examined the general human rights situation in the Russian Federation, and, in particular, the personal risk of the complainants of being subjected to torture if returned there. The State party further notes that it falls to the complainants, who must present an arguable case, to establish that they run a foreseeable, real and personal risk of being subjected to torture. In addition, the risk of torture must be assessed on grounds that go beyond mere theory, but do not have to meet the test of being highly probable.

4.6Regarding the current situation of the human rights in the Russian Federation and, specifically, in the northern Caucasus, the State party notes that recent reportsshow that the general levels of violence have decreased in the past several years. At the same time, the State party does not underestimate the concerns regarding the human rights situation, since recent reports still contain information of human rights violations against the civilian population in the form of arbitrary detentions, abductions, torture and extrajudicial killings.

4.7The State party submits that several provisions of its Aliens Act reflect the same principle as those indicated in article 3 of the Convention and, therefore, the State party authorities apply the same kind of test when considering asylum applications. According to sections 1-3 of chapter 12 of the Aliens Act, an asylum seeker cannot be returned to a country where there are reasonable grounds to assume that that person would be in danger of being subjected to death penalty, corporal punishment, torture or other degrading treatment or punishment.

4.8The State party further submits that the national authorities are in a very good position to assess the information submitted by an asylum seeker and to assess the credibility of claims. In the present case, the Migration Board and the Migration Court have made a thorough examination of the material before them. Upon the initial asylum claim, the Migration Board conducted an interview that lasted approximately 2 hours and 15 minutes. This was conducted in the presence of a counsel and an interpreter. On one occasion, the Migration Board was able to re-examine the “new circumstances” invoked by one of the complainants (see para. 4.2).

4.9The State party refers to the Committee’s general comment No. 1 (1997) on the implementation of article 3 of the Convention, as well as its jurisprudence, stating that considerable weight will be given to findings of facts made by organs of the State party concerned. The Migration Board and the Migration Court are specialized bodies with particular expertise in the field of asylum law and practice. There is no reason therefore to conclude that the examination by the national authorities was inadequate or that the outcome was arbitrary or amounted to a denial of justice.

4.10The State party submits that it was able to identify several inconsistencies in the facts presented by the complainants. During the interview with the Migration Board, Mr. M.A. stated that he and Ms. M.N. stayed with his aunt until December 2005 or January 2006. However, Ms. M.N. stated that they stayed only until October 2005. The complainants claimed that this inconsistency was the result of misinterpretation. Furthermore, Mr. M.A. stated that, during their visit on one occasion, the military officers never entered the house, while Ms. M.N. stated that they entered the house and searched it.

4.11Mr. M.A. also claimed that he was arrested on two occasions, in 1999 and 2003. In 1999, an armoured vehicle exploded in the vicinity of his village and the residents of the village were blamed for this incident. In 2003, Mr. M.A. was arrested and asked to sign a statement accepting responsibility for the 1999 attack. The State party finds this explanation implausible. Mr. M.A. submitted to the Migration Board that he had escaped from detention in 2003, whereas in his present complaint to the Committee, he reported that he had been released.

4.12Regarding the summonses from the Chechen authorities, the State party submits that Mr. M.A. was called to serve as a witness. The Migration Board considered the document to be very simple and therefore of low probative value. In addition, Mr. M.A. claimed that he had no contact with the Chechen authorities from 2005 to 2009. According to the State party, it is implausible that the authorities would have had no interest in Mr. M.A. for four years if he had been suspected of being a member of a rebel movement.

4.13The State party further finds Ms. M.N.’s allegations regarding her alleged assaults by the Russian military on two occasions, in 2007 and in 2008, implausible. Ms. M.N. was accused of having a “secret archive” of documents related to her former husband, who served as a bodyguard to Mr. Maskhadov. The Russian military raided her home searching for these documents in 1997, and the State party contends that it is unlikely that the Russian authorities would still be interested in the documents in 2008. Ms. M.N. also reported having sold medicine to rebels in 2004 and 2005. The State party submits that it is strange that she was only confronted with this fact in 2008.

4.14After the decision to expel the complainants became final, the complainants claimed before the Migration Board that they had new evidence relevant to their asylum case. They submitted a certificate issued by Memorial, a human rights non-governmental organization, allegedly sent by Ms. M.N.’s brother in Chechnya. Ms. M.N. further alleged that, after her brother had contacted Memorial to obtain the certificate, he was arrested and murdered by the police. Shortly after that, Ms. M.N.’s cousin, whom she had also contacted, was also murdered. The State party submits that the complainants have not provided the identities of these relatives and no evidence has been submitted to prove these claims.

4.15The State party therefore contends that the complainants have failed to satisfy the requirements that the risk of torture in this case is foreseeable, real and personal.

The complainants’ comments on the State party’s observations on admissibility and merits

5.1In reply to the State party’s observations, on 18August 2014, the complainants submit that the situation of human rights in Chechnyais very different from the State party’s description. They refer to the same report published by the Swedish Foreign Office, available only in Swedish, that the State party had cited. According to that report, the Russian administration is characterized by widespread corruption and human rights activists, journalists and whistle-blowers are harassed and subjected at times to fatal violence. According to the report, the most serious violations still occur in the northern Caucasus, where, in the name of fighting terrorism, the civilian population is subjected to torture, arbitrary arrests and kidnappings.

5.2The complainants also refers to “unconfirmed reports about political murders and disappearances” sanctioned by the authorities. This clearly demonstrates a consistent pattern of gross, flagrant or mass violations of human rights. Various organizations have described the situation in Chechnya as “an atmosphere of terror” and a “climate of pervading fear”. The United Nations High Commissioner for Human Rights, Navi Pillay, has called for accountability for murders, intimidation and harassment.

5.3The complainants submit that, while the Migration Board and the Migration Court are in good position to the information submitted by asylum applicants, they do not have first-hand knowledge of the situation in the country of origin, which is especially evident in the present case. While Mr. M.A. was interviewed in the Chechen language via an interpreter, Ms. M.N. was interviewed in Russian, which in and of itself could be considered a denial of justice.

5.4Regarding the inconsistencies, the complainants submit that these are not signs of “diminished credibility”. On the contrary, a flawless story would be a sign that it was memorized. Furthermore, the inconsistencies can be explained by post-traumatic stress disorder, which can result in memory dysfunction.The complainants further submit that the State party should have referred him to an expert in forensic medicine to verify the injuries that were inflicted when the complainants were tortured. It is the State party’s obligation to follow up on testimonies where claims of torture are made.

State party’s further submission

6.1On 18 June 2015, the State party, responding to counsel’s comments of 18 August 2014, reiterates its position that, while it does not wish to underestimate the concerns regarding the current human rights situation in the Russian Federation and especially in the region of thenorthern Caucasus, the situation in and of itself does not establish a violation of article 3 of the Convention. The complainants’ return to the Russian Federation would entail a breach if they could show that they are personally at risk of being subjected to the treatment contrary to article 3.

6.2The State party further submits that, throughout the domestic proceedings, the complainants were represented by counsel. The Migration Court has taken all relevant circumstances into account during the asylum proceedings. Although the initial burden rests upon the applicant, the Court must attempt to clarify ambiguities by posing additional questions.

6.3Regarding the complainants’ contention that the migration authorities of the State party were obliged to further examine whether the complainants had been tortured, the State party submits that the responsibility lies with the complainants themselves to invoke evidence in order to substantiate the risk of being exposed to treatment contrary to article 3 of the Convention. Where such evidence is cited, it is for the State party to dispel any doubts about such evidence. The State party reiterates that there is reason to question the veracity of the complainants’ claims. The State party therefore submits that the migration authorities were not obliged to further examine whether the complainants had been tortured in the past.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering a claim contained in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

7.2The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. It notes that in the present case, the State party has recognized that the complainants have exhausted all available domestic remedies. Accordingly, the Committee finds no further obstacles to admissibility; it declares the communication admissible and proceeds with its examination on the merits, as far as the complainants’ claim under article 3 of the Convention is concerned.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties concerned, in accordance with article 22 (4) of the Convention.

8.2The Committee must determine whether the deportation of the complainants to the Russian Federation would violate the State party’s obligations under article 3 (1) of the Convention not to expel or return (refouler) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture there. The Committee recalls that the existence in a country of gross, flagrant or mass violations of human rights is not in itself a sufficient ground for believing that an individual would be subjected to torture. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that an individual might not be subjected to torture.

8.3Recalling its general comment No. 1, the Committee reaffirms that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable, but it must be personal, present, foreseeable and real.

8.4The Committee takes note of the claim that the complainants were arrested and tortured on number of occasions, from 1999 to 2008. The Committee also notes that, according to the complainants, the Migration Board and subsequently the Migration Court, both failed to take into consideration this information.

8.5The Committee further notes that, even if it were to accept the claim that the complainants were subjected to torture and/or ill-treatment in the past, the question is whether they remain, at present, at risk of torture in the Russian Federation. The Committee notes that the current human rights situation in the Russian Federation remains a matter of concern in several aspects, in particular in the northern Caucasus. The Committee recalls that it expressed its concerns in its concluding observations concerning the fifth periodic report of the Russian Federation in 2012, quoting “numerous, ongoing and consistent reports of serious human rights abuses inflicted by or at the instigation or with the consent or acquiescence of public officials or other persons acting in official capacities in the northern Caucasus, including the Chechen Republic, including torture and ill-treatment, abductions, enforced disappearances and extrajudicial killings”.

8.6The Committee notes that the State party has drawn attention to inconsistencies and contradictions in the complainants’ accounts and submissions that cast doubts regarding their general credibility and the veracity of their claims. In particular, the complainants claimed that their relatives have been arrested and murdered at the hands of the authorities, but failed to provide any names or other evidence or details pertaining to these allegations. The Committee further notes that the complainants claim to have been arrested and assaulted on several occasions. Despite that, they provide little to no description of the alleged torture they suffered at the hands of the law enforcement officers. In general, the complainants have not provided exact dates of these events, nor referred to exact locations.

8.7The Committee further observes that the complainants merely stated before the Migration Board and the Migration Court that they feared being subjected to torture if returned to the Russian Federation, claiming that they have been tortured in the past and that that they would be targeted again. The Committee, however, notes that the complainants do not put forward any evidence that the Russian authorities would target them if they were returned. The Committee recalls that, in its general comment No. 1, it stated that it should give considerable weight to findings of fact made by the State party concerned. The Committee considers that, in the specific circumstances of this case, it is not necessary to challenge the State party’s evaluation of all the evidence presented by the complainants.

8.8The Committee recalls its jurisprudence whereby the risk of torture must be assessed on grounds that go beyond mere theory, and indicates that it is generally for the complainant to present an arguable case. In that regard, the Committee, in addition to the lack of information about the alleged instances of torture, also notes the discrepancies as described in paragraphs 4.10 and 4.11 above. In the light of the considerations above, and on the basis of all the information submitted by the complainants, including on the general situation of human rights in the Russian Federation, the Committee considers that the complainants have not provided sufficient evidence to enable it to conclude that their forcible removal to their country of origin would expose them to a foreseeable, real and personal risk of torture within the meaning of article 3 of the Convention.

9.The Committee, acting under article 22 (7) of the Convention, therefore concludes that the complainants’ extradition to the Russian Federation would not constitute a breach of article 3 of the Convention.